The Regulation of Work Health and Safety Elizabeth Bluff

35 The regulation of work health and safety Elizabeth Bluff 1. Introduction This chapter is about regulating the harmful effects of work, which globally results in around two million deaths each year (ILO 2003). A further 270 million people suffer traumatic injuries and 160 million are affected by diseases arising from their work. Clearly, for many people, work falls short of sustaining their physical, mental and social wellbeing, as envisaged by the International Labour Organization (ILO) in its Convention Concerning Occupational Safety and Health and the Working Environment (ILO 1981). As in other fields, in work health and safety (WHS), the concept of regulation ranges from state regulation in the form of legal obligations and public agencies that promote, monitor and enforce compliance to the wider non-state mechanisms in local, national and transnational domains that influence enterprise conduct (Black 2001). This chapter applies this broader, ‘decentred’ conception of regulation, together with Parker and Nielsen’s (see their Chapter 13, this volume) holistic and plural model of business compliance, in examining the regulation of WHS through a series of interrelated conceptual themes, as follows (Parker and Nielsen 2011). 611 Regulatory THEory: FoundatioNS AND ApplicatioNS Taking enterprise behaviour as the starting point, nine practices are outlined, which, if rigorously implemented, sustain better protection for health and safety at work. Enterprise behaviour is, however, motivated by business goals and priorities, and influenced by organisational capacities and characteristics. In turn, non-state institutions and actors in enterprises’ social and economic environments shape their motivations and capacities, with positive or adverse consequences for WHS. After examining these issues, the chapter turns to state regulation, including WHS laws and the role of state regulators, which seek to influence motivations and capacities and, through these, actions and outcomes for WHS. While the empirical research and theory canvassed in this chapter are applicable in different countries, the challenge of regulating transnationally in the context of global supply chains warrants specific attention, and this is the focus of the final section. 2. Enterprise behaviour: Preventive practices Empirical research suggests nine practices for effectively managing WHS to prevent work-related injuries, disease and deaths, as outlined by Johnstone et al. (2012). First, risk management is the central focus of WHS management as, to ensure health, safety and wellbeing, the enterprise must rigorously and comprehensively identify potential sources of harm, implement and maintain measures to eliminate or minimise risks and give preference to measures that design out or control risks at the source (see also ‘Laws for WHS’ below). Second, initiatives to manage WHS are led by senior managers and are planned, resourced, implemented and reviewed to ensure their effectiveness. Third, attention to WHS is integral to other organisational decision-making and functions, and forms part of the responsibilities of managers, supervisors and workers, commensurate with their roles. Fourth, WHS knowledge and skills are developed across the enterprise and are not confined to particular individuals, even if the enterprise employs or engages WHS professionals or practitioners to facilitate WHS management (see also ‘Organisational capacities’ below). A fifth practice is open and constructive communication about WHS matters among managers, supervisors and workers, and active worker participation through operational meetings (staff or toolbox) or health and safety representatives and committees. Priorities for participative problem solving are risk analysis for tasks and work roles, inspections 612 35 . THE regulatioN oF WoRK health and safety of the work environment and response to incidents and hazardous exposures. Sixth, monitoring and investigation of these events, and the underlying reasons for them, are crucial to minimising their impact, as are prompt first aid, access to medical treatment and emergency response. Seventh, enterprises have arrangements in place to consult, cooperate and coordinate on WHS matters with their wider workforce of contractors, subcontractors, agency and other precarious workers, as well as their suppliers, customers and end-users of their products and services (see also ‘Laws for WHS’ below). The eighth practice for effective WHS management is succinct documentation, which assists the enterprise to communicate WHS arrangements internally and to demonstrate compliance with WHS legal obligations to regulators and external stakeholders. Last, independent audits enable the enterprise to evaluate the capacity of its arrangements to prevent work-related injury, disease and death, and to draw information from a cross-section of managers, supervisors and workers, documentation of arrangements and observation of work and work environments. Practices such as these can sustain the commitment to, capacity and arrangements for an enterprise to self-regulate and comply with its legal obligations for WHS. On face value, they seem straightforward, but, in reality, many different factors and processes affect the willingness and capacity of enterprises and their workers to address WHS matters effectively. First among these are motivational factors. 3. Goals and priorities that motivate enterprise behaviour As the factors that drive or energise action and behaviour, motivations play a significant role in shaping the conduct of enterprises. Socio-legal scholars have characterised enterprise motivations as legal, economic, social and normative, or a subset or amalgam of these (Kagan et al. 2011; May 2004). Legal motivations derive from the perceived authority of the law and the threat of penalties if noncompliance is detected, while economic motivations relate to regulatees’ commercial goals to maximise profit. Social motivations stem from regulatees’ desire to earn the approval and respect of significant people with whom they interact 613 Regulatory THEory: FoundatioNS AND ApplicatioNS (to be seen to do the right thing) and normative motivations arise from regulatees’ desire to conform to internalised norms or beliefs about right and wrong. For WHS, empirical studies have established the contextualised and plural nature of enterprises’ motivations, which may provide positive rationales for taking preventive action or negative justifications for not doing so. For example, a study of UK enterprises concluded they were motivated to address WHS if poor safety standards had the potential to threaten business survival, if there were serious and well-recognised health risks for their operations and/or if they were large and highly visible to the inspectorate or local community (Genn 1993). When none of these conditions was met, firms subordinated safety to profitability goals. Profitability was also the driving force behind Australian construction firms’ responses to work-related fatalities and, while influential and large firms were able to accommodate safety, smaller firms and those prone to competitive pressures chose between profit and safety (Haines 1997). In contrast, for Australian enterprises from a cross-section of industries, motivations included a normative sense of moral and ethical duty to provide a safe workplace, economic concerns relating to insurance, reputational concerns and the threat of prosecution and penalties ( Jamieson et al. 2010). For enterprises such as machinery manufacturers, motivations derived from a mix of legal and technical standards1 and/or the economic goal of ensuring the marketability of machinery and firm profitability, and these tended to outweigh a sense of moral duty to protect human safety (Bluff 2015a). Recognising the contextualised and plural nature of motivations goes some way towards explaining workplace actions and outcomes for WHS. It does not, however, completely account for enterprise behaviour, which is also shaped by organisational capacities and characteristics. These, like motivational factors, are highly contextualised. 1 See, for example, international (International Organization for Standardization: ISO), European (European Committee for Standardization: CEN), US (American National Standards Institute: ANSI) and Australian (Standards Australia: AS) standards. 614 35 . THE regulatioN oF WoRK health and safety 4. Organisational capacities and characteristics that shape decision-making and action Safety and socio-legal scholarship have recognised the central role of capacity, including knowledge and skills, in enterprise self-regulation and action on WHS (Hale and Hovden 1998; Nytrö et al. 1998; Parker and Nielsen 2011). Furthermore, work itself is a significant source of WHS knowledge and skills as learning takes place through participation in work activities and interactions (Billett 2001; Brown and Duguid 1991), including through observation of others’ behaviour, conversations and storytelling and questioning and problem solving (Bluff 2015b; Gherardi and Nicolini 2002; Sanne 2008). In these respects, knowledge comprises individuals’ personal stocks of information, skills, experiences, beliefs and memories (Alexander 1991). One implication of this is that opportunities to participate in sound WHS practice and problem solving, and to observe and interact with competent practitioners, foster better learning about WHS. Yet a lot of WHS information and training are not grounded in authentic work experiences,

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